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13 Cardozo L. Rev. 783 (1991 - 1992)
Refocusing the New Evidence Scholarship

handle is hein.journals/cdozo13 and id is 805 raw text is: REFOCUSING THE NEW EVIDENCE SCHOLARSHIP * Terence J. Anderson** A COMMENT ON ROBERT S. THOMPSON'S DECISION, DISCIPLINED INFERENCES AND THE ADVERSARY PROCESS At the Boston symposium in 1985, Richard Lempert developed a metaphor that remains evocative: debates among probability theorists over the validity and applicability of their various theories in the con- text of litigation might well appear to lawyers to be like great powers fighting old wars and testing new weapons on Belgian territory with- out much regard for local terrain.1 Robert Thompson, in my view, has assumed the role of experienced ambassador and usefully presented the Belgian perspective in an effort to explain again to the contending powers why their efforts and weapons are misdirected in significant ways.2 I shall assume here the role of the Belgian peasant called from the fields to develop those views from a consumer's per- spective. I shall use that role to highlight what I see as three of the central points established by Thompson's argument and to develop some corollaries that I hope will persuade those engaged in the new evidence scholarship (the story theorists, as well as the probability theorists) that their work should be refocused to take into account more fully the various standpoints of its potential users. The role will permit me, I trust, to ignore some of the constraints of diplomacy. Let me begin by articulating three propositions that I think are common ground for all, contending powers and Belgians alike: 1. The principles of logic-inductive, abductive, and deductive- can be applied to any mass of data that constitutes evidence from © Copyright 1991 by Terence J. Anderson. All rights reserved. •* Professor, University of Miami School of Law. This comment is informed by my work with William Twining over the years and has benefitted from his comments on a preconference draft. I am grateful for both his long-term and immediate contributions to my thinking. I have left the text largely as presented at the conference; I have added footnotes to amplify or clarify points suggested in the text. I The papers and comments that were delivered at the Boston Symposium on Probability and Inference in the Law of Evidence were subsequently published. 66 B.U.L. REV. 377-952 (1986). Lempert's metaphor was reported by one commentator. Twining, The Boston Sympo- sium: A Comment, 66 B.U.L. REV. 391, 393 (1986). 2 Thompson, Decision, Disciplined Inferences and the Adversary Process. 13 CARDOZO L. REV. 725 (1991).

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